pluralism and proceduralism - massachusetts institute of

PLURALISM AND PROCEDURALISM

JOSHUA COHEN*

INTRODUCTION: DEMOCRATIC PLURALISM

In his review of John Rawls's Political Liberalism, Stuart Hamp-shire criticizes Rawls's assertion that "under reasonably favorableconditions that make democracy possible, political values normallyoutweigh whatever nonpolitical values conflict with them."' Hamp-shire finds this "alarming," and says that it "brings political liberalism,supposedly not itself a comprehensive morality, into direct conflictwith many comprehensive moralities that are likely to flourish in amodern democracy." 2 Proceeding from these observations about theplurality of "comprehensive moralities," Hampshire arrives at pessi-mistic conclusions about the prospects for consensus on any "substan-tive" conception of justice, whether its content be liberal ortraditionalist.3

This alarm and pessimism stand in striking contrast to Hamp-shire's assessment of the consistency of moral pluralism with agree-ment on fair procedures:

If [the] distinction between procedural and substantive justice is un-derctnnid htwUpn firn-ee in thpe nrn ce and firne in the. r-.clllt

the claims for political liberalism and public reason and for the dutyof civility become plausible. Within different moralities, liberal andconservative, the fairness of the actual outcome of a conflict will beevaluated differently, even though both sides recognize the fairnessof the adversarial process. Outcomes are by their nature open todispute, but processes need not be.... Rawls is implicitly recogniz-ing the distinction between fairness in the procedure and fairness inthe result when he makes democracy an essential element in thestructure of political liberalism. Democracy is a procedure .... 4

* Professor of Philosophy and Political Science, Massachusetts Institute of Technology.B.A., M.A., 1973 Yale; Ph.D. 1979, Harvard. I presented an earlier draft of this paper at a NotreDame University Symposium on Rawls's Political Liberalism. I am grateful to members of theaudience for their comments, and to Oliver Gerstenberg and Uday Mehta for helpfulsuggestions.

1. Stuart Hampshire, Liberalism: The New Twist, N.Y. REV. BOOKS, Aug. 12, 1993, at 44[hereinafter Hampshire, The New Twist]. Rawls says roughly what is attributed to him by Hamp-shire in the text in JOHN RAWLS, POLITICAL LIBERALISM 139, 155-56, 168-69, 209 (1993) [herein-after POLITICAL LIBERALISM].

2. Hampshire, The New Twist, supra note 1, at 44.3. Id.4. Id. at 46.

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The distinction between procedural and substantive justice and the as-sociated criticism of Rawls's surfeit of substance echo a complaint inHampshire's Innocence and Experience: "Rawls's political or proce-dural justice is, as he defines it, not narrowly procedural enough." 5

These criticisms suggest three important claims about moral plu-ralism and its implications for an account of justice.6 By way of back-ground, let's say that a society is morally-as distinct from ethnically,culturally or organizationally7-pluralistic if it features a set of moralviews whose members are both comprehensive in scope and incom-patible in at least some of their important claims. 8 Hampshire, then,makes the following points:

(1) Contrary to the extravagant predictions of an end of ideologyassociated with theories of social and political modernization, anymodern democracy will be morally pluralistic.9 I assume this to becorrect, and will not say anything more about it.(2) Moral pluralism does not defeat hopes for consensus on polit-ical procedures. It is compatible, in particular, with common accept-ance that justice requires fair, democratic procedures for resolvingdisagreements. 1°

(3) Moral pluralism inevitably generates disagreements about non-procedural issues of political justice-for example, issues of fair dis-tribution-making it unrealistic to hope for agreement on asubstantive conception. The relevant disagreements are not simplymatters of negotiable differences of preference or interest; they arematters of intrinsically zero-sum conflict about what, beyond fairprocedures, justice demands." Put otherwise: any substantive ac-count of justice-for example, any account of fair distribution-de-

5. STUART HAMPSHIRE, INNOCENCE AND EXPERIENCE 187 (1989) [hereinafter INNOCENCEAND EXPERIENCE].

6. Each of these themes is developed in detail in id.7. On the role of organizational pluralism in a substantive conception of democracy, see

Joshua Cohen & Joel Rogers, Secondary Associations and Democratic Governance, 20 POL. &Soc'Y 393 (1992).

8. A moral conception is comprehensive "when it includes conceptions of what is of valuein human life, and ideals of personal character, as well as ideals of friendship and of familial andassociational relationships, and much else that is to inform our conduct, and in the limit to ourlife as a whole." POLITICAL LIBERALISM, supra note 1, at 13.

9. I do not want to suggest that Hampshire thinks-or that I think-that moral pluralismis either peculiarly modern, distinctively democratic, or a bare, unexplained fact. In Innocenceand Experience he traces pluralism to the imaginative powers that are essential to human nature.See in particular chapters one and four. I believe that Hampshire's discussion (especially inchapter four) ties moral pluralism too closely to the good of individuality, but I cannot pursuethis point here.

10. "Universal agreement can be expected, in the name of rationality, only on the methodsof fair argument which will arbitrate between the different answers to these questions [of sub-stantive justice], when an answer is needed for public purposes and social arrangements." INNO-CENCE AND EXPERIENCE, supra note 5, at 108. For an important defense of this assertion, see id.at 142-46.

11. See INNOCENCE AND EXPERIENCE, supra note 5, at 61, 141.

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pends for its justification on a comprehensive conception of thegood.l2

I will use the term "democratic pluralism" for views that endorsethese three claims: in a nutshell, that moral pluralism is compatiblewith agreement on rules of a democratic political game, but not withmore substantive agreement.

I disagree with the democratic pluralist view. Procedural and sub-stantive values come, I will argue, as parts of a package; contrary toHampshire's claim, moral pluralism does not drive a wedge betweenthem. In making this case, I will side with Rawls against Hampshire.For Rawls's view is centrally committed both to a substantive concep-tion of justice13 and-in Political Liberalism-to accommodating themoral pluralism that allegedly undermines agreement on such aconception.'4

To clarify the terms of the argument and locate the issues on awider landscape, though, I need first to fill out the democratic pluralistposition. For democratic pluralism is a familiar view, suggested inconceptions of American constitutional design advanced by a tradi-tion extending from Holmes15 to Ely16 to Ackerman17, and in the nor-mative pluralism of democratic theorists from the early HaroldLaski18 to Robert Dahl.19

Take the constitutional variant of democratic pluralism. Puttingto the side the many disagreements among its proponents, it statesthat the U.S. Constitution is a design of democratic process. The Con-stitution establishes a framework of democratic procedure; it falls to

12. In discussion, John Rawls has emphasized this formulation of Hampshire's position.13. See infra text accompanying notes 34-37.14. See POLITICAL LIBERALISM, supra note 1, at xvi-xviii.15. See for example Holmes's dissent in Lochner v. New York, 198 U.S. 45, 74 (1905).16. See JOHN HART ELY, DEMOCRACY AND DISTRUST (1980).17. See 1 BRUCE ACKERMAN, WE THE PEOPLE (1991) [hereinafter 1 ACKERMAN, WE THE

PEOPLE] (especially see chapter one). Ackerman's important distinction between monist anddualist democratic interpretations of the U.S. Constitution does not affect my discussion here.

18. See the essays by Laski in THE PLURALIST THEORY OF THE STATE (Paul Q. Hirst ed.,1989) (especially see Law and the State). Laski was principally concerned to reject the modemconception of sovereignty, and to encourage administrative decentralization. But along the wayhe suggests a view of the kind described in the text.

19. See ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS (1989) [hereinafter DAHL, DE-MOCRACY]; ROBERT A. DAHL, PREFACE TO DEMOCRATIC THEORY (1956) [hereinafter DAHL,PREFACE]. Preface to Democratic Theory emphasizes the importance of background consensus"on policy" in a pluralistic democracy. Id. at 132. But it is not clear what "the underlying con-sensus on policy" includes, and in what ways it is procedural. The connections of, distinctionsbetween, and institutional consequences of procedural and substantive agreement are centralthemes in Democracy and Its Critics. DAHL, DEMOCRACY, supra, at 163-92, 280-310. On therelationship between the earlier normative pluralism and modern pluralism, see Earl Latham,The Group Basis of Politics: Notes for a Theory, 46 AM. POL. SCI. REV. 376 (1952); ROBERT A.DAHL, Pluralism, Polyarchy, and Scale, in DEMOCRACY, LIBERTY, AND EQUALITY 226 (1988).

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the people, acting within that framework, to make substantive valuechoices, which are legitimate so long as they have a permissible proce-dural pedigree. 20 Rights, principles, and standards that are not ingre-dients in the ideal of democratic process-whether guarantees ofreligious liberty or norms of fair distribution-are not as constitution-ally fundamental as those that are-for example, rights of voting andpolitical speech, or norms of fair representation. 21

A similar outlook informs the tradition of democratic pluralism inpolitical theory. 22 Dahl, for example, holds out the possibility of aconsensus extending to the democratic process, to a principle of equalconsideration that provides the normative foundation for that process,and to certain rights-e.g., the right to a fair trial-rooted in the ideaof equal consideration though not required for a democratic process.But the range of that extension is uncertain: it is unclear whether itcovers nonpolitical speech, privacy, or the free exercise of religion.And it excludes the possibility of agreement on a conception of thecommon good-for example, Rawls's difference principle-that ex-tends beyond the good of having a democratic process.23 Given plu-ralism, Dahl argues, conceptions of the common good are inevitably"too limited to be generally acceptable or too general to be very rele-vant and helpful." 24

Different versions of democratic pluralism are advanced for dif-ferent purposes, and we may find it compelling as constitutional the-

20. More precisely: for Ely, the government, acting in the name of the people, is to makethe substantive value choices; the Supreme Court, acting in the name of the Constitution, is toensure that those choices are made through a genuinely representative process. ELY, supra note16. For Ackerman, the people themselves make substantive value choices in periods of height-ened political engagement (exemplified by the New Deal); the role of the Court is to police theprocesses of normal politics and to ensure that the government acts within the bounds set by thepeople in periods of constitutional politics. 1 ACKERMAN, WE THE PEOPLE, supra note 17. Butfor both Ely and Ackerman, the Constitution is fundamentally a design of democratic process.So there could, for example, be no doubt about the constitutional validity of a partial repeal ofthe First Amendment establishing Christianity as an official religion. See 1 ACKERMAN, WE THEPEOPLE, supra note 17, at 3-16; ELY, supra note 16. In defending his account of the Constitution,Ackerman emphasizes that the U.S. Constitution-unlike the German-does not include en-trenchment clauses protecting substantive rights from constitutional amendment. 1 ACKERMAN,WE THE PEOPLE, supra note 17. This point is of uncertain significance, since the Constitutionhas no clauses entrenching procedures either.

21. For example, we ought not to appeal to them in interpreting the open-ended clauses ofthe Constitution.

22. This paragraph summarizes themes in DAHL, DEMOCRACY, supra note 19, at 163-92,280-310.

23. For criticisms of pluralist skepticism about the common good, see THEODORE J. Lowi,THE END OF LIBERALISM: THE SECOND REPUBLIC OF THE UNITED STATES (2d ed. 1979).

24. DAHL, DEMOCRACY, supra note 19, at 283.

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ory without endorsing it as political philosophy. 25 Still, the manyvariants of it are animated by a common thought about the implica-tions of moral pluralism for modem politics: that the only political

f consensus we can reasonably hope for is confined to democratic polit-ical procedures, say, "the right to vote and freedom of political speech

i and association, and whatever else is required for the electoral andlegislative procedures of democracy ... 26

Borrowing terminology from Rawls, democratic pluralism en-dorses (as consistent with moral pluralism) the idea of constitutionalconsensus-an agreement on the "political procedures of democraticgovernment."2 7 But it rejects the possibility that Rawls holds out-adeeper and broader overlapping consensus. A consensus is broader if itextends beyond political procedures and the rights required for them,

t to matters of liberty of conscience and freedom of thought, fair equal-ity of opportunity, and fair distribution; it is deeper if it reaches con-ceptions of the person and such abstract values as fairness, rather thansimply rules and principles.28 Democratic pluralism, then, rejectsdepth and breadth not as intrinsically unattractive, but as incompati-ble with moral pluralism. 29

My disagreements with democratic pluralism extend to issues ofbreadth and depth. To present those disagreements, I will sketch (inPart I) some background about Rawls's conception of justice as fair-ness, which will serve as an illustration of a view committed to bothprocedural and substantive norms. Here I will outline the substantiveelements of Rawls's view, trace his path to the idea of an overlappingconsensus on a substantive conception of justice, and locate the pre-

e cise force of Hampshire's objection. Then (in Part II) I will present aresponse to the democratic pluralist view, explaining-to use Rawls's

e terms-the connections between constitutional and overlapping con-t sensus. I will suggest that the distinction between procedure and sub-

stance is not a fundamental distinction in political justification, andE

25. Ely's case for democratic pluralism is based centrally on its alleged fit with the Constitu-tion, not on general considerations about justice or political legitimacy. See ELY, supra note 16,at 87-101. For criticism of the case, see Laurence H. Tribe, The Puzzling Persistence of Process-

ln Based Constitutional Theories, 89 YALE L.J 1063 (1980).26. POLITICAL LIBERALISM, supra note 1, at 159.27. Id.28. On breadth and depth, see id. at 149-50, 158-59, 164-67. Rawls presents his discussion as

a response to Kurt Baier, and does not connect the distinction between constitutional and over-lapping consensus with the broader tradition of democratic pluralism. These connections aresuggested, however, by his remarks on Ackerman and the idea of constitutional breakdown in id.at 237-40.

29. This statement requires certain qualifications in the case of Dahl's view as presentedabove, though the qualifications do not undercut the central point of contrast.

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that, contrary to Hampshire's assertion, democracy is a substantive,not simply a procedural, ideal.30 More precisely, I will argue that if-Iunderscore the conditional-if moral pluralism is consistent with pro-cedural or constitutional consensus, then it is consistent, too, with sub-stantive, overlapping consensus. Procedural and substantive concernsstand on a common footing in democratic thought.

I emphasize that my skepticism about the depth of the procedure-substance distinction is equally friendly to three quite different polit-ical philosophies, which might loosely be called "nihilist," "communi-tarian," and "democratic-egalitarian." The nihilist affirms thatprocedure and substance are on a par, accepts moral pluralism, andargues that moral pluralism undermines both procedural and substan-tive consensus.31 The communitarian agrees that they are on a par, isconcerned that moral pluralism undercuts both, but, with an eye toaffirming both sorts of consensus, resists moral pluralism-either de-nying it as a fact or urging moral consensus as an attractive and rea-sonable ideal.32 The democratic-egalitarian thinks that they are onpar, accepts moral pluralism, but denies that such acceptance defeatsthe possibility for substantive consensus. Despite their differences,however, these three views converge in rejecting the democratic-plu-ralist claim that moral pluralism drives a wedge between proceduraland substantive values.

I. SUBSTANTIVE JUSTICE AND MORAL PLURALISM

To this point I have followed Stuart Hampshire's practice-theconventional practice-of using the terms "procedure" and "sub-stance" without much explanation. I propose now to give some con-tent to the distinction, and to that end will make a few remarks aboutthe conception of justice in A Theory of Justice.33

30. See JOSHUA COHEN & JOEL ROGERS, ON DEMOCRACY 146-83 (1983); Joshua Cohen,Deliberation and Democratic Legitimacy, in THE GOOD POLITY: NORMATIVE ANALYSIS OF THESTATE 17 (Alan Hamlin & Philip Pettit eds., 1989); Joshua Cohen, The Economic Basis of Delib-erative Democracy, 6 Soc. PHIL. & POL'Y 25 (1989).

31. See, for example, Duncan Kennedy, Form and Substance in Private Law Adjudication,89 HARV. L. REV. 1685 (1976).

32. Michael Walzer's emphasis on the role of shared understandings in procedural and sub-stantive political argument might be understood as denying moral pluralism as a fact; MichaelSandel's account of the limits of justice, and Alasdair MacIntyre's concerns about interminablemoral disagreement, suggest that moral consensus is an attractive and reasonable ideal. SeeMICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY (1983);MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982); ALASDAIR MACINTYRE,AFTER VIRTUE: A STUDY IN MORAL THEORY (2d ed. 1984).

33. JOHN RAWLS, A THEORY OF JUSTICE 204 (1971) [hereinafter A THEORY OF JUSTICE].

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A. Reconciling Liberty and Equality

A Theory of Justice proposes a conception of justice for a consti-tutional democracy that would allow, as Rawls puts it, "a reconcilia-tion of liberty and equality." 34 Rawls's first principle calls for equalbasic liberties, political and civil, and for assurances of a fair value forpolitical liberty-guarantees that inequalities of income and wealth donot translate into unequal political influence.35 His second principlerequires that life chances not be affected by social class at birth-fairequality of opportunity-and that socioeconomic inequalities work tothe maximal advantage of the least advantaged, mitigating the effectsof the natural lottery- the difference principle.36 Assume that thevalue of the equal liberties to a person is an increasing function of thatperson's absolute command of resources. 37 Then since the first princi-ple assures equal liberties, and the second principle maximizes theminimum command of resources, the two together require maximizingthe minimum worth of liberty. Thus the reconciliation of liberty andequality.

Let's return now to the distinction between procedure and sub-stance. The best way to draw that distinction is controversial; but onany way of drawing it, Rawls's reconciliation of liberty and equality-his concern to present a conception of justice that draws on the centralpolitical values of liberal and egalitarian traditions in modem demo-cratic thought38 -includes elements of substance as well as procedure.

Take the first principle. It includes guarantees of religious liberty,and liberty of conscience more broadly-not matters of fair proce-

34. See id. at 204.35. On the basic liberties, see POLITICAL LIBERALISM, supra note 1, at 294-99; on the fair

value of political liberty, see id. at 324-31, 356-63. Rawls sharply criticizes the Supreme Court'sclaim in Buckley v. Valeo, 424 U.S. 1, 48-49 (1976), that regulations to ensure fair value repre-sent impermissible abridgements of expressive liberty, that, in the Court's words, "the conceptthat government may restrict the speech of some elements of our society in order to enhance therelative voice of others is wholly foreign to the First Amendment." See POLITICAL LIBERALISM,supra note 1, at 359-63. The Court has now taken an important first step in rejecting the claim inBuckley. Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) (upholding a Michiganlaw prohibiting corporations from using general treasury funds for independent expenditures inconnection with state candidate elections) represents a fundamental break with the Buckleyframework. It expands the conception of "corruption" beyond quid pro quo to concerns aboutunfair influence.

36. A THEORY OF JUSTICE, supra note 33, at 56-83.37. That is, not dependent on their relative position in the distribution. This is not true for

the political liberties. See the discussion of the "limited space" of the political process in POLIT-ICAL LIBERALISM, supra note 1, at 324-31 (especially see 328-29). Thus the special requirementof fair value. For a more general discussion of relative positions, see A THEORY OF JUSTICE,supra note 33, 530-41.

38. As is suggested in POLITICAL LIBERALISM, supra note 1, at 9, 22, 34-35.

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dure.39 To be sure, some aspects of freedom of thought and expressionarguably have procedural value. Consider expression that is, in CassSunstein's sense, political: "intended and received as a contribution topublic deliberation about some issue."40 Even in the case of politicalexpression, however, it is not clear that procedural considerations pro-vide a compelling rationale for stringent protection.41 And in any casethe procedural rationale is limited: much artistic and scientific expres-sion is neither intended nor received as a contribution to public de-bate.42 Same for rights of bodily integrity and for the libertiesassociated with the rule of law. The right to a fair trial is, in a way,procedural, but the procedure is not political democracy. Moreover,while the fair value of political liberty is arguably procedural, it is notintrinsic to democracy, understood simply as a system with universalsuffrage and regular, competitive elections.

Or consider the second principle. Fair equality of opportunity is asubstantive, egalitarian ideal, condemning differences in chances thattrace to differences in social position. It is not a matter of fair proce-dures of conflict resolution or collective choice. And the egalitarianconception of the common good expressed in the difference princi-ple,43 too, is fundamentally a matter of substance, not procedure.44

39. See 1 ACKERMAN, WE THE PEOPLE, supra note 17, at 14; ELY, supra note 16, at 94.According to Ely, attributions of nonpolitical functions to the First Amendment's free speechguarantee suffer from the "smell of the lamp." But he also says that "the obvious cannot beblinked: part of the explanation of the Free Exercise Clause has to be that for the framers reli-gion was an important substantive value .... " Id. This combination of views is puzzling. Whyinsist that the Free Speech Clause must be interpreted procedurally, given the substantive basisof the Free Exercise Clause?

40. This is Sunstein's definition of political speech in CAss R. SUNSTEIN, DEMOCRACY ANDTHE PROBLEM OF FREE SPEECH 130 (1993). Variations on the idea that the Constitution's freespeech guarantee is about democracy have been advanced in ALEXANDER MEIKLEJOHN, POLIT-ICAL FREEDOM (Oxford Univ. Press 1968) (1948); Robert H. Bork, Neutral Principles and SomeFirst Amendment Problems, 47 IND. L.J. 1 (1971); Owen M. Fiss, Why The State?, 100 HARV. L.REV. 781 (1987); ELY, supra note 16.

41. For criticism of the procedural rationale, see RONALD DWORKIN, The Forum of Princi-ple, in A MATTER OF PRINCIPLE 33, 61-65 (1985).

42. I believe that it is more limited than Rawls thinks appropriate, but his discussion offreedom of expression in POLITICAL LIBERALISM, supra note 1, at 33140 is not clear on thisissue. In places, he emphasizes the connection between speech, the capacity for a sense of justice,and politics. E.g., id at 335, 337. But the general framework of argument about basic libertiesdraws on both the capacity for a sense of justice and the capacity for a conception of the good,id. at 331-40, and this provides the basis for wider guarantees. Aspects of expression that are notconnected to politics will sometimes be linked to the capacity for a conception of the good. Seemy discussion of the deliberative and expressive interests in Joshua Cohen, Freedom of Expres-sion, 22 PHIL. & PUB. AFF. 207 (1993).

43. On the egalitarianism of the difference principle, see A THEORY OF JUSTICE, supra note33, at 100-08. For criticisms, see G.A. Cohen, Incentives, Inequality, and Community, in 13 THETANNER LECTURES ON HUMAN VALUES 263 (Grethe B. Peterson ed., 1992).

44. I say "fundamentally" because of the role of the idea of pure procedural justice in theaccount of the difference principle: a distribution satisfies the difference principle just in case it is

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In short, the proposed reconciliation of liberty and equality iscrystallized in five elements of substantive justice:

(1) rights of conscience;(2) rights of expressive liberty (not confined to political speech);(3) fair equality of opportunity;(4) the fair value of political liberty (perhaps); and(5) the difference principle.

The first two are associated with liberalism; the next three with egali-tarianism. Put them together, and you have the promised reconcilia-tion of values of liberty and equality.4

It might be said that all these elements of substantive justice are,in Rawls's own theory, fundamentally procedural. The justification forthem appeals to the original position, a fair procedure of collectivechoice. I cannot explore this in detail now. Suffice it to say that it ismisleading to think of the original position as procedural rather thansubstantive. 46 The parties in the original position have, for example,various higher-order interests-including the interest in forming andrevising a conception of the good-and those interests are the sourcesof some of the requirements of substantive justice (e.g., liberty of con-science and expressive liberty).47 But it is not clear that the originalposition would be less procedurally fair if the parties were not as-sumed to have those interests. Moreover, it would be no objection tothe view I am presenting if procedural ideals issued in substantive re-quirements of justice: that would prove, not disprove, that proceduraland substantive values come as parts of a package, and that moralpluralism does not drive a wedge between them.

the outcome of playing the political-economic game according to fair rules. So fairness in therules translates into fairness in the result. See A THEORY OF JUSTICE, supra note 33, at 83-90.But the rules are not standards of collective choice, and-more to the point-the case for thefairness of the rules is made by reference to expected outcomes, in particular the expectationsunder the rules for the least advantaged. Because the justification appeals to expected out-comes, it is misleading to think of the difference principle itself as procedural.

45. Moreover, this reconciliation is supposed to proceed in a way that also achieves the"good of community." I have in mind the ideal of a well-ordered society as a social union ofsocial unions with a consensus of principles of justice and the shared end of upholding justice, asdefined by those principles. On the connection between a well-ordered society and the values ofcommunity, see A THEORY OF JUSTICE, supra note 33, at 395-587 (especially the summary at577-87).

46. As Rawls suggests in A THEORY OF JUSTICE, supra note 33, at 120, 136.47. On these highest-order interests, see POLITICAL LIBERALISM, supra note 1, at 29-35, 72-

77, 299-315.

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B. Reconciliation and Moral Pluralism

I have drawn my sketch of the elements of substantive justice inRawls's view entirely from A Theory of Justice. According to PoliticalLiberalism, the more recent modifications of his views do not requireany change in those elements.48 Nor do they require any substantialchange in the arguments for them, beyond emphasizing that the argu-ments are political: that the principles are designed for the basic struc-ture, that the case for them is to be presented independently of anycomprehensive moral view, and that they express values and idealsimplicit in democratic practice.49

The difference in Political Liberalism is its emphasis on the moraldiversity characteristic of a just society. With liberties of conscience,expression, and association, and the resources needed to exercisethose liberties, citizens will endorse the axioms, so to speak, of differ-ent religions and first philosophies 50 (many people of course will have,as now, more loose-jointed views with no axioms).S' Practical reason,operating under the favorable conditions provided by the basic liber-ties, does not produce convergence in evaluative conception.

Hampshire's concerns enter here. Consider a society regulated byRawlsian principles, or any substantive conception. Why should weexpect the moral views that flourish in such a society to support thoseprinciples: why will the principles be derivable from within or evenconsistent with those diverse systems? We can ask a parallel questionabout the ideal of a fair system of cooperation among free and equalmoral persons.52 Citizens in a democratic society may be familiar withthose political ideas and values from the "political institutions of aconstitutional regime and the public traditions of their interpreta-tion"5 3 associated with constitutional democracy. But familiarity fa-mously breeds many things. Why expect that those political values willbe embraced by the moral conceptions that find favor among themembers of such a system? In sum: why expect an overlapping con-

48. See POLITICAL LIBERALISM, supra note 1, at 6-7 & n.6; see also Joshua Cohen, MoralPluralism and Political Consensus, in THE IDEA OF DEMOCRACY 276, 277-78 (David Copp et al.eds, 1992).

49. On the idea of a political conception of justice, see POLITICAL LIBERALISM, supra note1, at 11-15.

50. The protection of these liberties is sufficient, not necessary. The suppression of libertiesdoes not eliminate (or perhaps even limit) moral diversity; it drives such diversity underground.

51. On loose-jointedness, see STEPHEN HART, WHAT DOES THE LORD REQUIRE?: HOWAMERICAN CHRISTIANS THINK ABOUT ECONOMIC JUSTICE (1992).

52. POLITICAL LIBERALISM, supra note 1, at 13-22.53. Id. at 13. This familiarity is required for a political conception of justice.

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sensus, broad enough to encompass substantive principles, deepenough to include conceptions of person and society?

This is not, I emphasize, the same as asking whether our valuesendorse the principles, or whether most moral views endorsed overthe course of history have endorsed the principles, or whether reason-able moral views, however defined, converge in accepting the princi-ples and the political values that they articulate. The question insteadis about the legitimacy of the basic institutions in a society regulatedby a conception of justice that embraces liberal and egalitarian polit-ical values. Formulated as a test for an acceptable conception of jus-tice (a necessary but not sufficient condition), the question is: wouldthe comprehensive views that flourish within a society regulated by aconception of justice that aims to reconcile values of liberty and equal-ity uphold that conception? Would they endorse a rationale for theconception that draws on certain abstract ideas of fair cooperationand of persons as free and equal? And would they accept the require-ment that political justification proceed on the ground made availableby that conception and the abstract ideas associated with it?

C. Revisiting Hampshire

According to Hampshire, the answer to each of these questionsis: no. The fact that "'moral and religious sentiments ... are in theiressence exclusive and divisive" requires that we give up on the ideal ofa consensus on substantive principles of justice.54 Different views-not unreasonable, except in a question-begging sense-converge onlyin acknowledging such great evils as "murder and the destruction oflife, imprisonment, enslavement, starvation, poverty, physical painand torture, homelessness, friendlessness," 55 and in recognizing theneed for fair procedures of negotiation to avoid those evils and ensurea "peaceful and coherent society." 56 But in the face of disagreementson substantive justice that follow (he supposes) from moral disagree-ment, not all views about the requirements of justice can be simulta-neously satisfied: someone must lose by the lights of his/her own views

54. Hampshire, The New Twist, supra note 1, at 46.55. INNOCENCE AND EXPERIENCE, supra note 5, at 90.56. Id. at 73. More precisely, Hampshire's thought is that the evil of the conditions and

practices noted in the text is not so much acknowledged as presupposed by conventional moralreasoning: "These are some of the constancies of human experience and feeling presupposed asthe background to moral judgments and arguments," id. at 90, in the way that the absence ofspontaneous disappearances of middle-sized objects is a constancy presupposed as backgroundto perceptual judgments. This is the core of Hampshire's response to Humean subjectivismabout value. Id. at 81-110.

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of justice. That, together with an acknowledgement of the great evilsand the need for fair procedures to avoid those evils, suggests that wecan-in a slogan that I will be returning to later-reasonably demandonly to be heard. By contrast, it is fanaticism to insist as a generalmatter on winning, to place one's own substantive views-whether lib-eral or traditionalist-above the requirements of fair bargaining.57

And it also betrays fanaticism, or perhaps an allegiance to the Platonicmyth "of a sovereign reason which can secure a consensus," 58 ormaybe simple wishful thinking, to expect agreement on a conceptionof justice that embraces and reconciles values of liberty and equality(and community!). Egalitarian and liberal elements must both bedropped in favor of the more minimal conception of justice as fairprocess. That is the force of the democratic pluralist critique of sub-stantive justice.

II. CONNECTING PROCEDURE AND SUBSTANCE

I want now to explore this claim about the different relations thatprocedural and substantive principles bear to pluralism. I will arguethat democracy is, in its preconditions, implications, and rationale, asubstantive as well as procedural ideal. So if-note again the condi-tional-pluralism does not defeat a procedural consensus, thenneither does it exclude a deeper and broader overlapping consensus.By the end, I hope to have made the case that the ideal of democracyprovides a basis for substantive values of liberty and equality of thekind that justice as fairness aims to reconcile59-that democracy is notsimply, as Hampshire says, a matter of procedure, and that the pros-pects for overlapping consensus are on a par with the prospects forconstitutional consensus.

A. Preconditions

To begin with, then, consider some of the substantive precondi-tions of democracy. I will distinguish three categories of suchpreconditions 6 0:

(1) rights implicit in the idea of democratic process;

57. The fanaticism consists in requiring "other persons to observe duties and obligations,and to develop specific virtues, without providing them with any reasons for abandoning theirprevious conceptions of the good" and for accepting an alternative. INNOCENCE AND EXPERI-ENCE, supra note 5, at 146.

58. Hampshire, The New Twist, supra note 1, at 46.59. See five elements of substantive justice supra p. 597.60. On the first two categories, see DAHL, DEMOCRACY, supra note 19, at 163-75.

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(2) rights and other conditions that are not implicit in the idea butrequired as a supporting framework for an open democratic pro-cess; and(3) rights and other conditions required to encourage consent todemocratic outcomes.

I emphasize that these categories do not correspond to particularrights and conditions, but instead specify the abstract roles of rightsand other background conditions.61 A single right may, then, playseveral roles, and this will be an important source of complexity in theright itself.62

1. Implicit Rights and Conditions

Rights of suffrage are, in one way, transparently procedural.Without such rights, we have no democratic procedure; limit them,and you limit the inclusion (participation) and perhaps also the con-testation (competition for office) essential to democracy.63 But a vari-ety of political liberties that are less transparently procedural mightalso be described as implicit in the democratic process: they can beprovided with a rationale that connects them reasonably directly withprocedural ideals.64 Take, for example, the ideal of "an open and ef-fective democratic process,"65 and the associated conception of polit-ical legitimacy: that outcomes are legitimate if they trace to such aprocess. Arguably, liberties of political expression and association areimplicit in this ideal; while their connection with the democratic pro-cess is less transparent than the connection of suffrage rights, theymust be in place for a political process to be open and so for outcomesto be legitimate.66

This point is of course welcome to democratic pluralists: indeed Itake it from them, and do not suggest that rights of expression, forexample, are substantive. (They do not fall into the five categoriesnoted earlier.67) Agreement on procedures is in part agreement onrights that are, as Dahl puts it, "part of the very conception of the

61. I thank Oliver Gerstenberg for stressing this point in correspondence.62. See my discussion of the right of freedom of expression in Cohen, supra note 42.63. On contestation and inclusion as two dimensions of democracy, see ROBERT A. DAHL,

POLYARCHY 1-16 (1971).64. Of course, the procedures themselves may have a substantive rationale. When I say

here that a right, for example, has a procedural rationale, I mean only that it is required for aprocedure. I am not addressing the rationale for the procedures, though see discussion on ra-tionale infra pp. 612-15.

65. ELY, supra note 16, at 105.66. Thus Ely says that the "central function" of the First Amendment is to "assur[e] an

open political dialogue and process." Id. at 112.67. See five elements of substantive justice supra p. 597.

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democratic process."68 But it is important to note that if the demo-cratic pluralist rests the case for rights of political expression and asso-ciation on the claim that they are part of the "very conception" ofdemocracy, then that conception must be richer than the minimal ideaof democracy as a process characterized by regular elections, compet-ing parties (political contestation), and universal suffrage (political in-clusion). The conception must also include the idea that the politicalprocess is open, in ways that supplement those requirements. To ex-plore the implications of this openness, consider the second categoryof preconditions: the rights and conditions that provide a supportingframework for democratic process.

2. Supporting Framework

One reason for thinking that the democratic process ought to beopen-in the ways that are advanced by rights of political expressionand association-is rooted in the value of fairness. For example, a pro-cess may fail to be open because it includes viewpoint-based restric-tions on political expression. Such restrictions, though they apply toeveryone, are unfair because they effectively disenfranchise thosewhose views they exclude.69 Recall a central idea of democratic plural-ism: that in the face of moral pluralism it is unreasonable to insist onwinning, but reasonable to insist on being heard. People are effec-tively disenfranchised-not heard-when their views and interests donot count for anything because they are barred, despite their politicalrights, from exerting influence on the results of the political process. 70

Given effective disenfranchisement, it is not true that "interested par-ties have reasonable access."71

Suppose, then, that the rationale for an open democratic pro-cess-the kind of process that democratic pluralists endorse-is basedon a concern for fair influence. Then the commitment to openness hasimplications that extend beyond protections of the rights of politicalexpression and association that are required to give substance torights of participation. Considerable controversy surrounds the pre-cise statement of a requirement of fair influence. Proposals mightrange from a requirement of equal influence, to an assured minimum

68. DAHL, DEMOCRACY, supra note 19, at 167.69. They "might just as well be disenfranchised." ELY, supra note 16, at 84.70. Hampshire mentions a requirement of "reasonable access" as one element in the idea of

procedural justice. INNOCENCE AND EXPERIENCE, supra note 5, at 141.71. Id. The passage I quote from in the text suggests one element in a set of conditions on

fair process.

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value of political rights guaranteed, for example, by providing publicsupport for education, or decent welfare minima, 72 to a ban-as withRawls's own fair value of political liberty-on inequalities of politicalinfluence that derive from unequal resources, achieved by supple-menting education and welfare minima with floors under political ex-penditures or ceilings on them.73 What seems undeniable, though, isthe case for moving from democratic process to openness, then to fair-ness, and finally to fair influence-that is, for broadening a constitu-tional consensus to include some assurances of a supportingframework of rights and conditions that are neither transparently pro-cedural, as are suffrage rights, nor directly required for openness, asare rights of political expression.

A different route will take us to a similar conclusion. I just sug-gested that an open political process is required to ensure fairness.But it is also important for informed and intelligent collective deci-sions, with "genuine argument and counter-argument." 74 Consideragain the case against viewpoint-regulation in the area of political ex-pression. Such regulation is not simply unfair to those whose views arerestricted; it is also troubling from the point of view of reflective anddeliberative collective choice. In Meiklejohn's terms, it impairs "thethinking process of the community."7 5

This deliberative case for free expression again provides a ration-ale for broadening the constitutional consensus, extending it to sub-stantive assurances of, for example, an educated citizenry and thepublic good of well-conducted political debate. As the MassachusettsSupreme Judicial Court said in a recent decision:

[T]he Commonwealth has a duty to provide an education for all itschildren, rich and poor [and] this duty is designed not only to servethe interests of the children, but, more fundamentally, to preparethem to participate as free citizens of a free State to meet the needsand interests of a republican government ...."76

72. San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973), rejects the claim that localfinancing of school districts violates a Constitutional guarantee of the worth of citizenship rights.But the Court did not reject the claim that the Constitution sets a threshold below which theworth of those rights cannot fall. They argued instead that there was no showing of a failure tocome up to that threshold: "no charge fairly could be made that the system fails to provide eachchild with an opportunity to acquire the basic minimal skills necessary for the enjoyment of therights of speech and of full participation in the political process." Id. at 37.

73. See Rawls on the fair value of political liberties in POLITICAL LIBERALISM, supra note 1,at 324-31, 356-63; Dworkin on the political leverage that would be guaranteed by ensuring equal-ity of resources, in Ronald Dworkin, What is Equality? Part 4: Political Equality, 22 U.S.F. L.REV. 1, 21-22 (1987).

74. INNOCENCE AND EXPERIENCE, supra note 5, at 141.75. MEIKLEJOHN, supra note 40, at 27 (emphasis omitted).76. McDuffy v. Secretary of the Exec. Office of Educ., 615 N.E.2d 516, 548 (1993).

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3. Conditions of Consent

The third category of preconditions I will call "conditions of con-sent." Intuitively, the idea is that consent to the outcomes of a demo-cratic process requires that certain fundamental interests not beeffectively "up for grabs" in that process.77

Consider a religiously pluralistic society, with a constitutionalconsensus. Everyone agrees to resolve their disagreements throughdemocratic processes, and all the rights that are plausibly required forthe democratic process are in place and form part of the consensus.Assume, too, that there is no consensus on the free exercise of reli-gion, no overlapping consensus, as Rawls defines it.

Suppose now that a constitutional amendment is passed requiringSunday worship. The amendment does not impose a religious test foroffice; that would directly implicate the democratic process, inconsis-tent with the assumption of constitutional consensus. Despite theamendment, then, universal political liberties and liberties of politicalexpression remain fully in place, permitting opponents of the amend-ment to argue for its repeal.

So we have a case in which limits on rights of free exercise do notdirectly implicate the fairness of the procedures of collective choice.Of course the members of the religious minority might say that thoselimits do raise issues of fairness-urging that a fair procedure is a pro-cedure that yields fair outcomes, and that, since the outcome is not,the procedure is not. Assessments of the fairness of procedures-fromrace-conscious districting to requirements of supermajorities-are, ofcourse, commonly assessments of the merits of the procedures at pro-tecting important interests and values. But if a charge of unfairness israised, then there is not really the consensus on the fairness of theprocedure, which, for the purposes of the example, I have stipulatedto hold. (I will say more on this issue below.)

Now there is much to be said about what is wrong with the Sun-day worship amendment. I want here to confine myself to the follow-ing question: Is consensus on a democratic process that permits thisresult really more plausible than consensus on a democratic processthat rules it out? Let me fill out the example. I am assuming thatmembers of the different religious traditions take their religious viewsto impose obligations on them, including obligations about the day of

77. See, for example, the discussion of "immunity rights" in ROBERTO M. UNGER, FALSENECESSITY: ANTI-NECESSITARIAN SOCIAL THEORY IN THE SERVICE OF RADICAL DEMOCRACY524-30 (1987).

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worship; seen from the inside, so to speak, the requirements are notmatters of preference or choice. But how, then, could they possiblyconsent to a process which might realistically issue in regulations oftheir day of worship? The prospects of procedural agreement-of ashared willingness to accept a constitutional scheme of collectivechoice-are increased, then, when that constitution also works to "re-duce the stakes of political battles."78 And such reduction must pro-ceed in part by ensuring that certain nonprocedural rights andinterests will not be subject to political interference.79

One response to this, institutionally speaking, is a court withpowers of judicial review which has the responsibility to protect reli-gious liberty. 80 But I am not making a case here for judicial review,and other institutional possibilities may do as well-including a lessmajoritarian, more consensual (say, consociational or super-majoritarian) form of democracy that effectively institutionalizes a re-quirement of general approval of legislation touching on religiousexercise. 81 Pointing to this latter possibility, the democratic pluralistmight say that the example does not really show a need for an agree-ment on something other than a fair democratic procedure but rathershows what form of democracy is fair, given circumstances of religiousdivision.

But that gives away the game. Let me explain.

78. See ADAM PRZEWORSKI, DEMOCRACY AND THE MARKET 36 (1991). Przeworski usesthe point in the text as part of an argument for a purely procedural constitution. Constitutionsthat reduce the stakes of political battles "define the scope of government and establish rules ofcompetition, leaving substantive outcomes open to the political interplay." Id.

It is not clear what Przeworski means by "substantive," but it is hard to find an interpreta-tion that fits the U.S. case, with constitutional protections of religion and of different sorts ofsubstantive due process rights, or the entrenchment provisions in the postwar GermanConstitution.

79. See Rawls's discussion of the value of taking certain matters off the political agenda.POLITICAL LIBERALISM, supra note 1, at 151, 157,161. "Faced with the fact of reasonable plural-ism, a liberal view removes from the political agenda the most divisive issues, serious contentionabout which must undermine the bases of social cooperation." Id. at 157. To remove an issuefrom the political agenda is, of course, not to forbid people from discussing it, writing booksabout it, or forming organizations to promote a particular outlook on it. For this reason, SeylaBenhabib's concerns about removing issues from the agenda seem misplaced. See SEYLABENHABIB, Models of Public Space, in SITUATING THE SELF. GENDER, COMMUNITY ANDPOSTMODERNISM IN CONTEMPORARY ETHICS 89, 106-07 (1992).

80. The virtues of a court as a device for protecting rights are a matter of controversy. SeeDAHL, DEMOCRACY, supra note 19, at 187-91; Jonathan D. Casper, The Supreme Court andNational Policy-Making, 70 AM. POL. SCI. REV. 50 (1976); Robert A. Dahl, Decision-Making in aDemocracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279 (1957).

81. On consociationalism and the general distinction between consensual and majoritariandemocracies, see AREND LIJPHART, DEMOCRACIES: PATTERNS OF MAJORITARIAN AND CONSEN-svs GOVERNMENT IN TWENTY-ONE COUNTRIES (1984); Arend Lijphart, The Southern EuropeanExamples of Democratization: Six Lessons for Latin America, 25 GOV'T & OPPOSITION 68(1990).

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Democratic pluralism appeals to the idea of a procedural consen-sus. We can think of such a consensus in either of two ways. Accordingto the first, the domain of the procedural is defined by certain prac-tices, say the practice of proportional representation, or of judicial re-view. According to the second, it is defined by certain values. Let's saythat a procedural value is a value used for the assessment of proce-dures without regard to the results of those procedures. For example,"fair influence" is a procedural value if we understand it as requiringthat differences of influence not be explained by class position, and donot defend this value by reference to its importance for equitableoutcomes.

I am taking the idea of a procedural consensus in the second way,as a consensus on procedural values. But-coming back to the pointabout giving away the game-if we say that, for example, a more con-sensual (consociational or supermajoritarian) democracy is procedur-ally more fair because it better protects interests in the free exercise ofreligion, then we are agreeing that procedural agreement depends inpart on substantive agreement: not, to be sure, on religious agree-ment, but agreement on the importance of the interest in free exercise(the interest in fulfilling what a person takes to be his or her religiousobligations). Or suppose it is argued that a form of democratic processthat protects nonprocedural liberties is not more fair as a process, butsimply more likely to be stable. Even that suffices for the purposes ofthe argument about the substantive preconditions of democracy. Forthat argument aims to show that agreement on the value of fair demo-cratic process is, morally speaking, no more demanding than agree-ment on what are conventionally understood as nonproceduralmatters. So if agreement that justice requires fair procedures is consis-tent with moral pluralism, then-given the connections between pro-cedure and substance-agreement on substantive requirements is alsoconsistent with moral pluralism: e.g., requirements ensuring basic lib-erties of conscience and the fair value of political liberty.

B. Implications

I now turn to a second line of argument, focused not on the sub-stantive preconditions of democratic process but on its implications,that is, on the appropriate outcomes of a democratic process. To intro-duce the second category, I will start with a detour through a pointabout procedural and substantive justice that Hampshire makes in In-nocence and Experience.

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1. Hampshire on Substantive Justice

Hampshire distinguishes procedural justice, which imposes "abso-lute duties," from substantive moralities, including substantive con-ceptions of justice. Duties to support procedural justice-by normallycomplying with fair procedures-are absolute in two ways: they arenot derived from or dependent upon particular substantive concep-tions and, though not always overriding, they normally take prece-dence over the values of such conceptions. 82 An acknowledgement ofthe values of procedural justice might arise from a recognition thatpain, suffering, cruelty, humiliation, starvation, and misery are greatevils;83 an awareness that fair procedures of dispute resolution are re-quired to prevent such evils; and a general unwillingness tosubordinate a concern to avoid those great evils to any of the substan-tive values of one's own moral conception. 84 The duties are absolute,then, in part because that recognition, awareness, and unwillingnessare available to people who endorse a wide range of substantive moraldoctrines-to the proponent of liberal justice, who also attaches spe-cial weight to individual rights, perhaps for reasons of autonomy orself-improvement; and to the proponent of a traditionalist conception,troubled about the corrosive effects of rights on the community's wayof life.85

The conjunction of the fact of moral diversity8 6 with the absolutevalue of fair procedures might suggest that all questions of substantivejustice are, so to speak, up for grabs: the justice of a practice woulddepend on the society one is asking about and what its memberswould agree to. That, in turn, would rest on the substantive moralitiesprevalent in the society.

82. INNOCENCE AND EXPERIENCE, supra note 5, at 140.83. That these are great evils is not controversial; indeed it is presupposed by conventional

moral reasoning. INNOCENCE AND EXPERIENCE, supra note 5, 81-110.84. Hampshire appears to advance three arguments for the absolute duty of justice. One is

the argument from the great evils sketched in the text. Id. A second is an argument from indi-viduality, id. at 113-36, while a third treats fairness itself as a fundamental value. Id. at 153-54.See Joshua Cohen, Hampshire on Morality and Justice (Jan. 7, 1994) (unpublished manuscript,on file with the author).

85. Hampshire acknowledges that there are moral views-associated, for example, with ex-treme forms of religious fundamentalism-that lack the resources for supporting the great valueof justice, even in "'all normal circumstances."' INNOCENCE AND EXPERIENCE, supra note 5, at140, 144-46. Hampshire calls such views "evil moralities," distinguishing them both from viewsthat accept the absolute duty of justice and from the Nazi rejection of morality. Id. at 66-72, 76-77.

86. Innocence and Experience also emphasizes the positive value of such diversity, which isrooted in human imagination-standing alongside reason as a "fundamental power of mind,"INNOCENCE AND EXPERIENCE, supra note 5, at 48,-and an associated "drive to radical diversityand individuality." Id. at 33. See generally id. at 32-38, 41-48.

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But Hampshire rejects this relativism.8 7 He mentions five prac-tices, not themselves matters of fair procedures for dispute resolution,each of which is unjust under all circumstances. Slavery is one, but so,too, are royal absolutism, unregulated factory labor, the absence offair opportunities for women, and the unlimited accumulation of vastfortunes.88 Of course, people have not always regarded them as un-just. But the failure to recognize their injustice must be understand as"the blindness of reasonable persons." 89

Hampshire's thought seems to be that the survival of certainpractices-for example, slavery-is contingent on the common per-ception of them as natural and unchangeable and so not proper topicsfor a practical reason concerned with what is attainable through ac-tion. But the scope of practical reason is not permanently fixed. Andonce these practices are subjected to practical challenge, they becomeproper topics of public discussion, depriving the metaphysical ration-ale of its force. But no other rationale is available for them.90 Put to-gether, then, the idea that justice is a matter of fair procedure with thepower of deliberative reason to dissolve false necessities, and youhave the conclusion that certain practices are unjust because theycould not ever be the outcome of a fair procedure of dispute resolu-tion, in which the participants are not blind to real possibilities.91

It is not clear from Hampshire's account precisely why they couldnot emerge-how the conjunction of an expanded sense of possibilitywith a procedural view of justice yields the injustice of slavery, abso-lute monarchy, unregulated factory labor, the exclusion of women,and the unlimited accumulation of wealth. And that uncertainty re-flects the fact that Hampshire-as is commonly true with defenders ofprocedural views-does not explain what makes a procedure fair.92 If,for example, unconstrained majority rule is a fair procedure, then anyof the unjust practices could be approved of, given the right distribu-

87. Amy Gutmann appears to attribute such relativism to Hampshire in Amy Gutmann,The Challenge of Multiculturalism in Political Ethics, 22 PHIL. & PUB. AFF. 171 (1993).

88. INNOCENCE AND EXPERIENCE, supra note 5, at 55-59, 63.

89. Id. at 58.90. Hampshire does not explain why this is so. One natural explanation is that the practices

put such great burdens on some people that they cannot be justified except if those burdens areunderstood to be naturally necessary.

91. Hampshire's view of historical possibility is, I think, too simple. For an interesting andmore subtle view of the terrain, and the complexities it raises for ethical thought, see BERNARDWILLIAMS, ETHICS AND THE LIMITS OF PHILOSOPHY 160-67 (1985).

92. A rough sketch of the "minimum decencies of procedural justice" is provided (implic-itly) at INNOCENCE AND EXPERIENCE, supra note 5, at 140-41.

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tion of preferences; similarly if bargaining from a Hobbesian state ofnature is a fair procedure.93

I assume, then, that Hampshire has in mind a richer and moreattractive conception of a fair procedure: not simply as an institution-ally tamed conflict of interests, but as a procedure in which peopleadvance reasons in favor of outcomes, reasons reflecting their owncomprehensive moral conceptions. His point, then, is that certainpractices, once subjected to challenge, are revealed as wholly lackingin rational defense. However much some people may like and benefitfrom them, no adequate reasons can be given for the burdens theyimpose.

This, then, gives us another basis for rejecting a fundamental pro-cedure-substance distinction: begin with a conception of fair proce-dure and a consensus on that conception. Practices are unjust if theycould not be the outcome of that procedure because they could not begiven a rational defense by those who accept the fairness of the proce-dure, given a correct understanding of real possibilities. Their injus-tice is, in principle, no more controversial than the justice either of theprocedures, or of the preconditions that must be in place for thoseprocedures themselves to obtain. In particular, it can be establishedwithout relying on any specific conception of the good, if the justice ofthe procedures can be so established.

2. Democratic Procedure and Depth

The claims of substantive justice that Hampshire thinks are notsocially relative are of very great historical importance; but they arealso rather limited: in particular, they are not sufficiently broad tocover the five elements I identified earlier in my remarks on Rawls'sreconciliation of liberty and equality (liberty of conscience, etc.).Moreover, on the dimension of depth, they do reach down to the con-ception of citizens as free and equal. These limits on breadth anddepth are, however, partly a result of the very abstract description ofthe procedure that constrains substantive justice: thus far, we havesaid only that it is an institutionalized, fair process of reason giving.This abstractness can, however, be remedied. For recall that we areassuming a constitutional consensus. So our concern is not merelywith the substantive implications of fairness or reason giving generi-

93. On the chaotic character of majority rule, see Richard D. McKelvey, Intransitivities inMultidimensional Voting Models and Some Implications for Agenda Control, 12 J. ECON. THE-ORY 472 (1976); on bargaining from a Hobbesian state of nature, see JAMES M. BUCHANAN, THELIMITS OF LIBERTY: BETWEEN ANARCHY AND LEVIATHAN (1975).

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cally understood, but with the substantive implications of consensuson a specifically democratic procedure of conflict resolution.

Think, then, of the democratic process as one kind of institution-alized process of reason giving. What distinguishes it is the require-ment of openness, of universal and fair access to political institutions:a strong condition of inclusion, which makes political access independ-ent of social position or natural endowment. 94 Democracy, in short, isa procedure that institutionalizes an idea of citizens as equals. Agree-ment on the democratic process-a constitutional consensus-mustalso, then, constrain what can count as an acceptable reason withinthat process. For if one accepts the democratic process, agreeing thatadults are, more or less without exception, to have access to it, thenone cannot accept as a reason within that process that some are worthless than others or that the interests of one group are to count for lessthan the interests of others. And that constraint on reasons will limitthe substantive outcomes of the process, in ways that supplement thelimits set by the generic idea of a fair procedure.

Of course people can and often do violate this constraint. Myclaim is that moral pluralism causes no more trouble for the idea of apopulation who agree with the deeper political ideal of treating peo-ple as free and equal, and see their acceptance of the results of a fairdemocratic process as simply one aspect of that more comprehensiveideal, than it does for the idea of a population who accept the resultsof a democratic process because the process is open. In short, moralpluralism does not divide a more superficial constitutional consensusfrom a deeper overlapping consensus.

3. A Process of Deepening?

I have presented the point about equality and deepening as, inthe first instance, simply an analytical matter, a claim about the im-plicit commitments of constitutional consensus. But reflection on theconduct of political argument under conditions of constitutional con-sensus suggests that it may have some practical force as well. A stabledemocratic process, in which individuals and parties seek to win sup-port for their views and projects, puts some pressure on views to en-dorse the deeper idea of citizens as equal persons.

Dahl, for example, claims that the rationale for democracy lies inpart in the idea of the intrinsic equality of human beings and the asso-

94. Hampshire counts "reasonable access" for "interested parties" as one of the "minimumdecencies of procedural justice." INNOCENCE AND EXPERIENCE, supra note 5, at 141.

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ciated requirement of giving equal consideration to the interests ofcitizens.95 And he emphasizes that this requirement limits acceptableoutcomes of the democratic process: it condemns discriminatory prac-tices and mandates protections for a variety of rights and interests thatare not preconditions for democratic process. Moreover-and this isthe crucial point here-he discerns a "rough pattern" in the evolutionof public opinion in stable polyarchies: "the idea of Intrinsic Equality... has steadily gained strength as an element in the constitutionalconsensus and political culture."9 6 Dahl urges that stable democracyrequires constitutional consensus: a widespread belief in the value ofdemocracy and "habits, practices, and culture" suited to that belief.97

But he suggests as well that constitutional consensus tends to deepen:"public opinion in democratic countries tends to move toward an evermore inclusive commitment to ideas like intrinsic equality and equalconsideration."98 And the strengthening of those ideas as elements ofthe public culture leads in turn-as an empirical matter, and not sim-ply as a matter of analytical argument-to constraints on substantiveoutcomes of the democratic process, greater protections of nonpoliti-cal rights and interests.

Dahl does not describe mechanisms that lead to this strengthen-ing. But it is not hard to see how the deepening he describes might begenerated by norms and practices of political argument under condi-tions of constitutional consensus. Consider the evolution of the polit-ical rhetoric and project of socialist parties in this century.99 Theybegin the century with a class project, presenting themselves as agentsof the industrial working class; they expect the maturation of capital-ism to turn the working class into a majority of the population; andthey understand that they can only sustain their claim to serve as anagent of the working class if they participate in democratic politics,winning near term gains by winning elections.

But the identification of the industrial working class with theemerging majority is overturned by events. And that sharpens theelectoral dilemma of socialist parties: to win gains through electionsthey need to win elections. But winning elections means extending

95. On the points in this paragraph, see DAHL, DEMOCRACY, supra note 19.96. Id. at 187.97. Id. at 172.98. Id. at 179.99. Here I follow the discussion in ADAM PRZEWORSKI, Social Democracy as a Historical

Phenomenon, in CAPITALISM AND SOCIAL DEMOCRACY 7 (1986).

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their political appeal beyond the working class.00°° The result is thatsocialist parties-those that preserve electoral commitments-univer-salize their appeal, addressing themselves to all citizens as equals.They reinvent a universalistic politics, addressed to citizens generally,regardless of social position. 0' According to Adam Przeworski, fromwhom I have borrowed this sketch:

Differentiation of the class appeal ... reinstates a classless vision ofpolitics. When social democratic parties become parties of "the en-tire nation," they reinforce the vision of politics as a process of de-fining the collective welfare of "all members of the society." Politicsonce again is defined on the dimension individual-nation, not interms of class.l02

Perhaps, then, political argument under conditions of constitu-tional consensus itself encourages the conception of citizens as equals,thus deepening the terms of agreement. Moreover, to return now tothe issue of fair process and permissible outcomes, this deepening inturn sets constraints on what can be agreed to in a fair procedure bylimiting what can count as a reason within such a procedure. I havenot yet examined the precise implications of these constraints. Butthat must wait, since those implications will be best understood afterwe have set out the third link between procedure and substance: theconnection I have labelled "rationale."

C. Rationale

In motivating a substance-procedure distinction, democratic plu-ralists say-as I noted earlier-that given the diversity of interests andvalues, it is unreasonable to insist on winning, but acceptable to insiston being heard. But why is it reasonable to insist on being heard, asthat requirement is understood under democratic conditions? Why isit reasonable to insist on access to open arenas of authoritative, collec-tive decision-making? Addressing these questions-understanding therationale of democratic procedure-will carry us, once more, beyondprocess to substance.

100. "This fact makes it rational for them to move out of the narrower circle of their ownviews and to develop political conceptions in terms of which they can explain and justify theirpreferred policies to a wider public so as to put together a majority." POLITICAL LIBERALISM,supra note 1, at 165.

101. What makes this a dilemma is that widening the appeal and redefining the nature ofpolitics threatens socialist parties with a loss of working class support. For a discussion of thestructure and dynamics of the resulting political calculus, see ADAM PRZEWORSKI & JOHNSPRAGUE, PAPER STONES: A HISTORY OF ELECTORAL SOCIALISM (1986).

102. PRZEWORSKI, supra note 99, at 28.

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1. Expression and Recognition

Without making any claim to completeness, I want to mentiontwo especially important considerations that support the reasonable-ness of a demand to be heard. They arise out of basic interests in ex-pression and recognition.10 3

The interest in expression is an interest in articulating thoughts,attitudes, and feelings on matters of personal or broader human con-cern, and perhaps through that articulation influencing the thoughtand conduct of others.104 One aspect of the expressive interest is aninterest in stating views about public affairs because of strongly heldmoral, religious, or political convictions about the proper conduct ofpolitics, broadly understood. We do not all hold such convictions withthe same intensity, scope, or determinateness. But most citizens haveconscientiously held convictions that, in at least some cases, providethem with compelling reasons for addressing public affairs. And, Isuggest, claims to equal political rights are in part rooted in the fact ofthose convictions. To be sure, under conditions of moral pluralism,citizens sometimes have opposing convictions and the reasons thatsome regard as compelling, others reject as insubstantial. Still, the fail-ure to acknowledge the weight of those reasons for the agent-even ifone does not accept them-and to acknowledge the claims to partici-pate that emerge from them reflects a failure to accept the terms of anopen democratic process, to endorse the constitutional consensus andthe deeper idea of citizens as equals.105

Claims to equal political standing are fueled, too, by the connec-tion between such standing and a sense of self-worth, a connectionrooted in the public recognition associated with equal standing.l06Rousseau urged this point in his argument for direct democracy:"Once the populace is legitimately assembled as a sovereign body, alljurisdiction of the government ceases; the executive power is sus-pended, and the person of the humblest citizen is as sacred and invio-lable as that of the first magistrate."' 07 Rousseau's affection for a

103. The discussion of the expressive interest draws on Cohen, supra note 42, at 224-28.104. I say "perhaps" because expression often has nothing to do with communication. See C.

EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 51-54 (1989).105. Hampshire's discussion of the fundamental value of individuality suggests a rationale,

within a variety of comprehensive moralities, for the importance of the expressive interest. SeeINNOCENCE AND EXPERIENCE, supra note 5, at 113-34.

106. See Rawls on self-respect and the political liberties in POLITICAL LIBERALISM, supranote 1, at 289-371; CHARLES R. BErrZ, POLITICAL EQUALITY: AN ESSAY IN DEMOCRATIC THE-ORY 109-10, 123-213 (1989); Dworkin, supra note 73, at 4-5.

107. JEAN-JACQUES ROUSSEAU, ON THE SOCIAL CONTRACT, bk. 3, ch. 14 (Judith R. Masterstrans. & Roger D. Masters ed., 1978) (1762).

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democracy of popular assemblies is not widely shared. But even if wereject his critique of representation, we can accept the force of hispoint: that rights of participation, political expression, and associationare important in part because they provide public support for a senseof self-worth by providing public recognition of the equality of citi-zens, whatever their differences in human and social circumstances. l08

2. Extension

Suppose, then, that these expressive and recognitional interestscontribute to the rationale for an open democratic process-the ob-ject of constitutional consensus. We need to ask now whether the im-plications of the expressive and recognitional interests can be confinedto political procedures, or if instead they have substantive implicationsas well.

Take first the expressive interest. Recall that the expressive inter-est is implicated in open democratic procedure because important rea-sons, as identified by a person's moral, religious, or politicalconvictions, require that person to address public matters. But suchconvictions also provide important reasons for expression on nonpub-lic matters: the expressive interest is not confined to speech that is"intended and received as a contribution to public deliberation aboutsome issue."'0 9 Because the reasons require expression on nonpoliti-cal matters, the case they provide for expressive liberties is not con-fined to discussion of issues of public concern. Moreover, given therole of religious and other conscientious convictions in setting a per-son's obligations, they provide a case for rights of conscience and reli-gious liberty in areas with no special bearing on public affairs.

In short, the expressive interest, which provides part of the casefor an open democratic process, also provides a rationale for substan-tive rights that are not implicit in orrequired for democratic proce-dure, and it strengthens the case noted earlier for basic libertiesrequired to encourage consent to a democratic process.

A parallel case can be made about the interest in recognition,particularly when constitutional consensus deepens along the linessuggested earlier to include a conception of citizens as equals and as-sociated conditions on acceptable political reasons." 0 Beyond anopen democratic process and the requirement of equal standing within

108. As Rawls urges in his discussion of the social bases of self-respect. See POLITICAL LIB-ERALISM, supra note 1, at 318-20 & nn.28-30.

109. SUNSTEIN, supra note 40, at 130.110. See supra text accompanying note 90.

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that process, the interest in recognition suggests the importance ofnonprocedural norms-of a public understanding about equal oppor-tunity and the fair distribution of resources that severs the fate of citi-zens and the worth of their liberties from the differences of socialposition, natural endowment, and good fortune that distinguish thefree and equal members of a well-ordered society.

Take the difference principle as an illustration."' Assume that itis a matter of public understanding that justice demands maximizingthe minimum, that inequalities can only be justified by the benefitsthey confer on the least advantaged, that citizens must forgo advan-tages when they would reduce expectations at the minimum. That un-derstanding-part of a public sense of justice- serves as a way toexpress respect for those at the minimum and fully to affirm theirworth as equals, supplementing the affirmation that is provided byrights to political liberties and a fair value of those rights. The differ-ence principle does not simply require that departures from the distri-butional status quo work to the advantage of the least advantaged-that a rising tide lift all ships from their current positions. Instead ittreats equality itself as a baseline, requiring that existing inequalitiesthemselves are to the maximal advantage of the least advantaged. Inthis way, the difference principle provides an especially strong affir-mation of the interest in recognition, suited to an understanding of theequality of citizens that, I suggested, a commitment to constitutionalconsensus itself encourages.

In short, start from a consensus on an open political process. Nowconstrain the process leading to agreement and the reasons that canfigure in it by an idea of equality that emerges from the deepening ofconstitutional consensus. Add in the interest in recognition, which isitself part of the rationale of democratic process. The result is a casefor the substantive norms of equal opportunity and fair distribution-a case that is no more dependent on appeal to a comprehensive con-ception of the good than is the case for the process itself.

CONCLUSION

That completes the case for connecting constitutional and over-lapping consensus. I have sketched some links between procedural

111. See A THEORY OF JUSTICE, supra note 33, at 75-83. For discussion of the connectionsbetween the difference principle and the interest in recognition, see Joshua Cohen, DemocraticEquality, 99 ETHICS 727, 736-43 (1989). Another view that might be used to illustrate the pointsin the text is Dworkin's equality of resources. See Ronald Dworkin, What is Equality? Part 2:Equality of Resources, 10 PHIL. & PUB. AFF. 283 (1981).

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values and important elements of substantive justice, and indicated aswell how a constitutional consensus might deepen. More precisely, Ihave argued that an attractive conception of democratic process mustinclude ideas of openness and reason giving. But any conception ofdemocratic process that includes those ideas will also provide the re-sources for an account of substantive, and not only procedural, justice.

To conclude, I want briefly to consider three objections. I addressthese because they articulate a residual sense that there must be some-thing right about the democratic pluralist's claim that moral pluralismforces the procedure-substance distinction on us. That claim can, Ithink, seem intuitively obvious in ways that immunize it from compli-cated (nonintuitive) considerations of the kind advanced in this paper.So I need to say something about what prompts people to find thedemocratic-pluralist view so intuitively plausible, and to respond tothose promptings.

The first objection emphasizes that substantive agreement ismore demanding than procedural in the perfectly straightforwardsense that the substantive supplements the procedural; as comprehen-sive moral disagreement grows, then, the range of political values thatcan be supported by an overlapping consensus must correspondinglynarrow. And as it narrows, the plausibility that we will be able to pre-serve the "surplus" of agreement on substance over and above a moreminimal agreement on procedure must diminish.

It is certainly true that, as comprehensive moral disagreementgrows, the range of political values that can be supported by an over-lapping consensus correspondingly narrows. But this observation failsas a defense of a fundamental procedure-substance distinction. In fact,it assumes what needs to be shown: that disagreement might plausiblydrive a wedge between procedure and substance, that proceduralcommitments are, in some relevant sense, more minimal than substan-tive commitments. Consider an analogy. Suppose the proposal is madeto confine the term "theorem" to propositions whose provability isnot in dispute between constructivists and realists in the philosophy ofmathematics. Take someone who now endorses a realist philosophyand accepts this proposal; he/she will start to use the term "theorem"more narrowly. And as we extend the range of constructivisms thatneed to be accommodated (as they endorse increasingly strict forms offinitism), the class of theorems, according to the new usage, will nar-row. But we can be sure of one thing: it cannot happen that we willend up with theorems about even numbers and not about odd. Theunderlying disagreements may grow; but they will never produce a cut

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's between odd and even numbers. By analogy, moral pluralism may re-I duce the range of possible agreement, and it will certainly exclude cer-t tain substantive ideas. But it will not yield a fundamental cut between

if procedure and substance. That simply is not a deep distinction.

The thought that it is-and here I come to the second objection-derives from the fact that people say, truthfully, that there are out-

s comes they find objectionable but which they would be willing to tol-erate if they were given a fair chance to make their case. They do not

I regard the fact that a fair political process produces a bad legislativeoutcome-even a deeply morally objectionable outcome-as suffi-cient reason for condemning the process as unjust and for urging itsreplacement with an alternative.

But that is simply to assert what is not in dispute: that assuringfair procedures is an important political value, and that outcomes cansometimes be justified by being shown to result from a fair procedure.It does not follow from this undisputed truth that the only fundamen-tal political values are procedural.

t A final reason for thinking that the view I have advanced cannotbe right--or anyway, cannot capture what Rawls is now arguing-isthat I have not really taken moral pluralism seriously. I have notstarted from divergent moral conceptions, aimed to find points of con-vergence among them, and sought to show in particular that they con-verge in accepting substantive norms of justice.

This third objection reflects an unnecessarily narrow picture ofhow political argument is to accommodate moral pluralism, and animportant confusion about Rawls's idea of a political conception ofjustice. Such accommodation need not deny the autonomy of politicalargument and turn political philosophy into a search for points of con-vergence among comprehensive moral views. Put otherwise, Rawls'sidea of political liberalism is not that reasonable moral views convergeon a common understanding of justice. Instead, the idea is to present,in the first instance, a complete political conception of justice, withoutdrawing on or referring to comprehensive moral views. Then, withsuch a complete conception on hand, we can consider whether itwould be supported by the range of reasonable moral conceptionsthat we expect to arise in a society governed by it. This paper hasoperated solely at the first stage-the stage of freestanding politicalargument that articulates and works out the implications of a set ofideas without presenting them as dependent on or rooted in any com-

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prehensive moral view.l12 Whether these ideas can be supported by anoverlapping consensus is another matter. But for my purposes thefreestanding argument suffices. For my point, as I indicated at the out-set, is that moral pluralism causes no more trouble for agreement onsubstance than for agreement on democratic procedure. Since thedemocratic pluralist does not exclude such a consensus-Hampshirefinds nothing alarming in it-this suffices as a response to the demo-cratic pluralist.

112. The idea of a freestanding conception of justice-and of what I am calling the autonomyof political argument-lies at the heart of POLITICAL LIBERALISM, supra note 1, at xvii, 11-14.

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